Opinion
5 JD 2015
03-11-2015
IN RE: Joseph C. Waters, Jr. Municipal Court Judge First Judicial District Philadelphia County
ROBERT A. GRACI Chief Counsel ELIZABETH A. FLAHERTY Deputy Counsel Pa. Supreme Court ID No. 205575 Judicial Conduct Board 601 Commonwealth Avenue, Suite 3500 Harrisburg, PA 17106 (717) 234-7911
TO: JOSEPH C. WATERS, JR.
You are hereby notified that the Pennsylvania Judicial Conduct Board has determined there is probable cause to file formal charges against you for conduct proscribed by Article V, §§ 17(b) and 18(d)(1) of the Constitution of the Commonwealth of Pennsylvania and Canons 2A, 2B, 3A(4), 7B(1)(c) and 7B(2) of the Old Code of Judicial Conduct. The Board's counsel will present the case in support of the charges before the Pennsylvania Court of Judicial Discipline.
You have an absolute right to be represented by a lawyer in all proceedings before the Court of Judicial Discipline. Your attorney should file an entry of appearance with the Court of Judicial Discipline within fifteen (15) days of service of this Board Complaint in accordance with C.J.D.R.P. No. 110.
You are hereby notified, pursuant to C.J.D.R.P. No. 302(B), that should you elect to file an omnibus motion, that motion should be filed no later than thirty (30) days after the service of this Complaint in accordance with C.J.D.R.P. No. 411.
You are further hereby notified that within thirty (30) days after the service of this Complaint, if no omnibus motion is filed, or within twenty (20) days after the dismissal of all or part of the omnibus motion, you may file an Answer admitting or denying the allegations contained in this Complaint in accordance with C.J.D.R.P. No. 413. Failure to file an Answer shall be deemed a denial of all factual allegations in the Complaint.
COMPLAINT
AMD NOW, this 11th day of March, 2015, comes the Judicial Conduct Board of the Commonwealth of Pennsylvania (Board) and flies this Board Complaint against Joseph C. Waters, Jr., former Judge for the Municipal Court of Philadelphia. The Board alleges that former Judge Waters violated the Constitution of the Commonwealth of Pennsylvania, Article V, §§ 17(b) and 18(d)(1), and the Code of Judicial Conduct delineated more specifically as follows;
1. Article V, § 18 of the Constitution of the Commonwealth of Pennsylvania grants to the Board the authority to determine whether there is probable cause to file formal charges against a judicial officer in this Court, and thereafter, to prosecute the case in support of such charges in this Court.
2. From July 7, 2009 through September 23, 2014, former Judge Waters served as Judge of the Municipal Court of Philadelphia, Pennsylvania.
3. As a Municipal Court Judge, former Judge Waters was at all times relevant hereto, subject to all the duties and responsibilities imposed on him by the Constitution of the Commonwealth of Pennsylvania and the Code of Judicial Conduct.
4. On September 23, 2014, former Judge Waters resigned from the bench of the Municipal Court.
5. On September 24, 2014, former Judge Waters entered a negotiated Guilty Plea Agreement before the Honorable Juan R. Sanchez in the United States District Court for the Eastern District of Pennsylvania. United States v. Waters, Criminal No. 14-478. See Board Exhibit 1.
6. On October 13, 2014, former Judge Waters submitted a Statement of Resignation from the Bar of the Commonwealth of Pennsylvania.
7. On November 25, 2013, the Pennsylvania Supreme Court entered an Order accepting former Judge Waters' resignation and disbarring him on consent from the Bar of the Commonwealth of Pennsylvania.
8. Based on a Confidential Request for Investigation at JCB File No. 2014-577, the Board investigated the instant matter.
9. As a result of its investigation, and pursuant to Article V, § 18(a)(7) of the Constitution of the Commonwealth of Pennsylvania, the Board determined that there is probable cause to file formal charges against former Judge Waters in this Court. A. Felony Convictions
10. As the result of an investigation, the United States Attorneys' Office for the Eastern District of Pennsylvania filed a two count Information against former Judge Waters which charged him with one count of mail fraud (18 U.S.C. §§ 1341 and 2) and one count of honest services wire fraud (18 U.S.C. §§ 1343, 1346 and 2).
11. The September 24, 2014 negotiated Guilty Plea Agreement of former Judge Waters incorporated the two count Information.
12. A violation of 18 U.S.C. § 1341 is a felony.
13. A violation of 18 U.S.C. § 1343 is a felony.
14. By his Guilty Plea Agreement, former Judge Waters did plead guilty to two felonies.
15. As a result of the January 22, 2015 sentence imposed by Judge Sanchez, former Judge Waters was convicted of two felonies. B. Ex Parte Communications
16. In 2011 and 2012, former Judge Waters, Judge Dawn A. Segal and Judge Joseph J. O'Neill served as judges of the Municipal Court of Philadelphia.
17. Within the Information at Count One are statements of fact demonstrating that former Judge Waters initiated ex parte communication with Judges Segal (Judge #1) and O'Neill (Judge #2) pertaining to a civil matter, Houdini Lock & Safe Company v. Donegal Investment Property Management Services, Case No. SC-11-08-09-41920.
18. Within the Information at Count Two are statements of fact demonstrating that former Judge Waters initiated ex parte communication with Judge Segal regarding a criminal matter, Commonwealth v. Khoury, Docket No. MC-51-CR-0018634-2012.
19. Former Judge Waters also engaged in ex parte communication with Judge Segal regarding a civil case, City of Philadelphia v. Rexach Ian C., Case No. CE-12-03-73-0123.
1. Houdini v. Donegal
20. Person #1, Samuel G. Kuttab, a politically active businessman, is an owner and manager of Donegal Investment Property Management Services (Donegal), identified as Company A in the two count Information, a real estate management business.
21. Kuttab provided political support to former Judge Waters during his 2009 quest for appointment to the bench.
22. Kuttab provided political and financial support to former Judge Waters during his 2009 judicial campaign for the Municipal Court and during his 2011 exploration of a possible run for the Court of Common Pleas of Philadelphia.
23. Houdîni Lock & Safe Company (Houdini), identified as Company B in the two count Information, a Pennsylvania corporation, entered into a services contract with Donegal to provide monitoring and testing of a fire alarm system at a Donegal property on North Broad Street, Philadelphia, PA.
24. In accord with the contract, Houdini provided the agreed upon services to the fire alarm system at the Donegal property.
25. On August 9, 2011, Plaintiff Houdini filed a Statement of Claims against Defendant Donegal, claiming that Donegal failed to pay Houdini for the services it provided to Donegal under the terms of the contract. a. Houdini v. Donegal : Hearing Before Judge Segal
26. A hearing on the Houdini v. Donegal matter was scheduled before Judge Segal on September 30, 2011.
27. On September 30, 2011, former Judge Waters engaged in a conversation with Kuttab about the Houdini v. Donegal matter.
28. During the conversation, Kuttab requested a favorable decision for his company, Donegal, during the September 30, 2011 Houdini hearing.
29. On September 30, 2011, former Judge Waters called Judge Segal on the telephone about the Houdini hearing that was pending before her.
30. During the September 30, 2011 telephone conversation, former Judge Waters informed Judge Segal that "Kuttab . . . will be there" and "we got the defendant, Donegal, the name is," referring to the Houdini v. Donegal matter which was scheduled before Judge Segal that same day.
31. The two count Information includes the following quoted language from a September 30, 2011 recorded telephone conversation between former Judge Waters and Judge Segal, identified as Judge #1:
WATERS: I got something in front of you at 1 o'clock today.Guilty Plea Agreement, Appendix A, Information, Count 1, Paragraph No. 11.
JUDGE #1: Okay, tell me, what is it?
WATERS: The, the name's [Company A], okay.
JUDGE #1: Okay.
WATERS: Ah, it's . . . has something to do with an alarm company. [Person # 1] . . . will be there.
JUDGE #1: Okay, and, uh, okay.
WATERS: You know [Person #1]
JUDGE #1: And who do you need?
WATERS: Uh, we, we, we got the, the, the defendant . . . we got the defendant, [Company A], the name is.
JUDGE #1: Oh, okay. Okay.
WATERS: Alright.
32. On or about September 30, 2011, counsel for Donegal and Kuttab requested a continuance, stating that he needed more time to prepare for the hearing. Attorney for Houdini opposed the motion.
33. On September 30, 2011, Judge Segal presided over the Houdini hearing, granted the defense continuance as requested by counsel for Donegal and Kuttab, and ordered that the case proceed to trial without any further defense continuances.
34. The September 30, 2011 recorded telephone conversation, quoted at Paragraph No. 31 above, demonstrates that former Judge Waters initiated and engaged in in ex parte communication with Judge Segal about the Houdini hearing, a matter that was pending before her.
35. The September 30, 2011 recorded ex parte telephone conversation, quoted at Paragraph No. 31 above, demonstrates that former Judge Waters requested that Judge Segal provide favorable treatment to the litigant, Donegal, and to Kuttab, who is politically connected with or a friend of former Judge Waters.
36. The purpose of the September 30, 2011 telephone call from former Judge Waters to Judge Segal was to provide a "secret advantage" to Kuttab and Donegal.
37. The "secret advantage" was to prevent Houdini from receiving payment for security services rendered to Donegal.
38. Judge Segal's grant of the defense continuance at the September 30, 2011 Houdini hearing favored Donegal and Kuttab, for whom former Judge Waters requested special consideration during the ex parte telephone conversation.
39. By his September 30, 2011 telephone call to Judge Segal, former Judge Waters intended to and did use his position as judge to influence Judge Segal's decision at the Houdini v. Donegal hearing. b. Houdini v. Donegal : Trial Before Judge O'Neill
40. The Houdini v. Donegal trial was scheduled before Judge O'Neill on November 16, 2011.
41. On November 16, 2011, former Judge Waters engaged in a conversation with Kuttab about the Houdini v. Donegal trial.
42. During the conversation, Kuttab requested a favorable decision for his company, Donegal, at the November 16, 2011 trial.
43. On November 16, 2011, former Judge Waters called Judge O'Neill on the telephone about the Houdini trial that was pending before him.
44. During the November 16, 2011 telephone conversation, former Judge Waters informed Judge O'Neill that "Donegal is Kuttab," identified Kuttab as "a friend of mine," and asked Judge O'Neill to "take a hard look at it," referring to the Houdini v. Donegal case.
45. The two count Information includes the following quoted language from a November 16, 2011 recorded telephone conversation between former Judge Waters and Judge O'Neill, identified as Judge #2:
WATERS: Uh, you got a case this afternoon, [Company B. v. Company A]. All right, uh - -
JUDGE #2: Yeah? You got me.
WATERS: Huh?
JUDGE #2: You got me. Do I?
WATERS: Yeah, [Company A] is [Person #1]. He's a friend of mine, so if you can take a hard look at it.
JUDGE #2: Who's your guy? The defendant?
WATERS: Yeah, the defendant.
Judge #2: Okay.Guilty Plea Agreement, Appendix A, Information, Count 1, Paragraph No. 14.
WATERS: All right?
Judge #2: No problem.
46. On or about November 16, 2011, Judge O'Neill presided over the Houdini v. Donegal trial.
47. During the November 16, 2011 Houdini v. Donegal trial, Kuttab testified on behalf of his company, Donegal.
48. At the conclusion of the trial, Judge O'Neill entered judgment in favor of Donegal and against Houdini, dismissing Houdini's claim that Donegal failed to pay Houdini for services rendered and its claim for damages in the amount of $2,738.44.
49. Houdini's attorney provided notice to Kuttab and Donegal that it planned to file an appeal from Judge O'Neill's decision in Houdini v. Donegal in the Court of Common Pleas of Philadelphia.
50. Former Judge Waters advised Kuttab and Donegal to enter into a settlement agreement with Houdini, rather than be subject to the appeal process.
51. As a result of the settlement negotiations, the parties entered into a settlement agreement whereby Kuttab, on behalf of Donegal, agreed to pay $600 to Houdini instead of $2,738.44, the full amount of Houdini's damages claim.
52. The November 16, 2011 recorded telephone conversation, quoted at Paragraph No. 45 above, demonstrates that former Judge Waters initiated and participated in ex parte communication with Judge O'Neill about the Houdini trial, a matter that was pending before him.
53. The November 16, 2011 recorded ex parte telephone conversation, quoted at Paragraph No. 45 above, demonstrates that former Judge Waters requested that Judge O'Neill provide favorable treatment to the litigant, Donegal, and to Kuttab, who is politically connected with or a friend of former Judge Waters.
54. The purpose of the November 16, 2011 telephone call from former Judge Waters to Judge O'Neill was to provide a "secret advantage" to Kuttab and Donegal.
55. The "secret advantage" was to prevent Houdini from receiving payment for security services rendered to Donegal.
56. Judge O'Neill's decision in Houdini favored Kuttab and Donegal, the litigant for whom former Judge Waters requested special consideration during the ex parte telephone conversation.
57. By his November 16, 2011 telephone call to Judge O'Neill, former Judge Waters intended to and did use his position as judge to influence Judge O'Neill's decision at the Houdini v. Donegal trial.
2. Citv of Philadelphia v. Rexach
58. On June 29, 2012, a petition for consideration was pending before Judge Segal in City of Philadelphia v. Rexach, a case which was not part of the two count Information against former Judge Waters.
59. By Order dated May 15, 2012, President Judge Neifield entered a default judgment for the City of Philadelphia and against Rexach in the amount of $5,000 plus costs for failure to pay a 2009 Business Privilege Tax.
60. On June 12, 2012, Rexach filed a Petition to Open Judgment.
61. On June 12, 2012, Judge Segal denied Rexach's Petition to Open for lack of a meritorious defense.
62. On June 29, 2012, Rexach filed a petition to reconsider the previously denied Petition to Open.
63. On June 29, 2012, former Judge Waters contacted Judge Segal by telephone to discuss the Rexach case that was pending before her.
64. During the June 29, 2012 telephone conversation, former Judge Waters informed Judge Segal that his friend, Rexach, filed a petition to reconsider the June 12, 2012 ruling on the Petition to Open.
65. That same day, former Judge Waters also went to Judge Segal's robing room and initiated an in person conversation with her about the Rexach matter that was pending before her.
66. After former Judge Waters spoke with her about the Rexach petition for reconsideration, Judge Segal reviewed the matter and granted the petition.
67. By his June 29, 2012 telephone and in person conversations with Judge Segal, former Judge Waters engaged in two prohibited ex parte communications about the Rexach petition for reconsideration, a matter that was pending before Judge Segal.
68. ' During his June 29, 2012 telephone and in person ex parte communications, former Judge Waters requested that Judge Segal provide favorable treatment to the litigant, Rexach, who is politically connected with or a friend of former Judge Waters.
69. Judge Segal's decision in Rexach favored the petitioner, Rexach, for whom former Judge Waters requested special consideration during the June 29, 2012 telephone and in person ex parte communications.
70. Judge Waters intended to and did use his position as judge to influence Judge Segal's decision regarding the petition for reconsideration in the Rexach case.
3. Commonwealth v. Khoury
71. Between January 2010 and May 7, 2012, a confidential witness, CW #1, introduced former Judge Waters to his alleged business associate, UC #1, who was an undercover agent.
72. On May 7, 2012, CW #1 and UC #1 notified former Judge Waters that UC #l's "cousin," Khoury, was arrested on firearms charges and requested assistance with his criminal case, Commonwealth v. Khoury , a matter filed in the Municipal Court that same day.
73. Former Judge Waters agreed to assist UC #l's cousin, Khoury.
74. By his May 7, 2012 conversation with CW #1 and UC #1, former Judge Waters entertained a request for special consideration and agreed to arrange for preferential treatment for Khoury, the defendant in the Commonwealth v. Khoury matter.
75. On July 23, 2012, former Judge Waters contacted Judge Segal by telephone regarding the Khoury Preliminary Hearing, a matter pending before her.
76. During the July 23, 2012 telephone communication, former Judge Waters informed Judge Segal "that a "friend' of his was appearing before [her] for a preliminary hearing on a felony firearms possession case." See Guilty Plea Agreement, Appendix A, Information, Count 2, Paragraph No. 8.
77. During that telephone conversation, former Judge Waters requested that Judge Segal "help him" and identified his "friend" by name. Id,
78. In Khoury, the Commonwealth charged Defendant Khoury with a felony, Firearms Not to Be Carried Without a License, 18 Pa.C.S.A. § 6106(a)(1), and Carry Firearms in Public in Philadelphia, 18 Pa.C.S.A. § 6108.
79. On July 24, 2012, the day after the ex parte telephone communication with former Judge Waters, Judge Segal presided over the Preliminary Hearing in Khoury,
80. During the Khoury Preliminary Hearing, Judge Segal heard extensive argument about the elements and grading of the crime, Firearms Not to Be Carried Without a License.
81. Following argument in the Khoury matter, Judge Segal determined that the crime should be graded as a misdemeanor, not a felony as initially charged, and remanded the case for trial.
82. By his July 23, 2012 telephone conversation with Judge Segal, former Judge Waters initiated and engaged in ex parte communication about the Khoury case.
83. During his July 23, 2014 ex parte telephone conversation about the Khoury matter, former Judge Waters requested that Judge Segal provide favorable treatment to the litigant, Khoury, who is politically connected with or a friend of former Judge Waters.
84. Judge Segal's ruling in Khoury favored the defendant, Khoury, for whom former Judge Waters requested special consideration during the July 23, 2012 ex parte telephone communication.
85. By his July 23, 2012 ex parte communication, former Judge Waters intended to and did use his position as judge to influence Judge Segal's decision at the Preliminary Hearing in the Khoury matter. C. Campaign Related Conduct and Quid Pro Quo Special Consideration
86. In 2009, then candidate Waters ran for the position of Municipal Court Judge.
87. Candidate Waters prevailed in the 2009 primary election.
88. The Governor appointed candidate Waters to the Municipal Court bench and, after conformation by the Pennsylvania Senate, he began his service as an appointed judge on July 7, 2009.
89. While serving his appointed term, former Judge Waters continued his campaign for election to the Municipal Court bench.
90. On November 3, 2009, former Judge Waters won his election bid for the position of Municipal Court Judge.
91. On January 4, 2010, former Judge Waters was sworn in as an elected judge of the Municipal Court.
92. In Count Two of the Information, the statement of facts demonstrate that on December 30, 2009, Kuttab sent a text message to CW #1, a confidential witness referenced above in the Khoury matter, and to others to solicit campaign contributions on behalf of former Judge Waters.
93. The text message consisted of the following statement by Kuttab which demonstrates that former Judge Waters asked Kuttab to raise money to pay off his campaign debt;
Judge Waters has asked us to help bur[r]y his campaign debt. We have only two days to help he will sit on the bench for the next five years. If u wish to help pl.Guilty Plea Agreement, Appendix A, Information, Count 2, Paragraph No. 3.
94. Kuttab arranged for former Judge Waters to meet with CW #1 on January 5, 2010.
95. On January 5, 2010, former Judge Waters met with CW #1 and accepted a $1,000 cash contribution to his judicial campaign fund from CW # 1 for the purpose of paying off his 2009 campaign debt.
96. Former Judge Waters failed to disclose the $1,000 cash contribution to his 2009 judicial campaign fund that he received from CW #1 on his Campaign Finance Reports.
97. Count Two of the Information demonstrates that upon acceptance of the $1,000 cash contribution, former Judge Waters made the following pledge to CW #1:
Municipal Court handles all the, uh, code enforcement complaints . . . you run into a problem with any of your people, you get a hold of me . . . anything you need, anything I can do to help you or anybody that you, you're interested in, all you do is pick up the phone and call me . . . any time.Guilty Plea Agreement, Appendix A, Information, Count 2, Paragraph No. 4.
98. Between January 2010 and May 7, 2012, CW #1 introduced former Judge Waters to his alleged business associate, UC #1, an undercover agent referenced in the Commonwealth v. Khoury matter above.
99. On May 7, 2012, CW #1 and UC #1 requested, and former Judge Waters agreed to provide assistance, quid pro quo, to UC #l's cousin, Khoury, in the Commonwealth v. Khoury case. D. CHARGES
COUNT 1
100. By virtue of some or all of the facts set forth in Parts A, B and C, former Judge Waters violated Canon 2A of the Old Code of Judicial Conduct, effective through June 30, 2014, and is therefore subject to discipline pursuant to Article V, § 18(d)(1) of the Pennsylvania Constitution.
101. Canon 2 A provides:
Judges should respect and comply with the law and should conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
102. As a result of his September 24, 2014 guilty plea and the January 22, 2015 sentence imposed by Judge Sanchez, former Judge Waters now stands convicted of two federal felonies, mail fraud and honest services fraud.
103. By virtue of his convictions for mail fraud and honest services fraud, former Judge Waters failed to respect and comply with the law.
104. By virtue of his convictions for mail fraud and honest services fraud, former Judge Waters failed to conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
105. By all of his ex parte communications set forth in Parts B, former Judge Waters failed to conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
106. All of former Judge Waters' ex parte communications set forth in Part B involved conduct which implicated the judicial decision making process.
107. By his January 5, 2012 offer to CW #1 to accept requests for special consideration and to provide preferential treatment to CW #1, and others who had issues or problems in Municipal Court, former Judge Waters failed to conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
108. Former Judge Waters offer to accept requests for special consideration and to provide preferential treatment to CW #1 and others did implicate the judicial decision making process.
109. By his May 7, 2012 conversation with CW # 1 and UC #1, in which he entertained a request for provide special consideration and agreed to arrange for preferential treatment for Khoury in Commonwealth v. Khoury, former Judge Waters failed to conduct himself at all times in a manner that promotes public confidence.
110. Former Judge Waters' conduct of entertaining a request for special consideration and agreement to arrange for preferential treatment for Khoury did implicate the judicial decision making process.
111. As a result of all of the conduct set forth above, former Judge Waters violated Canon 2A of the Old Code of Judicial Conduct.
COUNT 2
112. By virtue of some or all of the facts set forth in Parts B and C, former Judge Waters violated Canon 2B of the Old Code of Judicial Conduct, effective through June 30, 2014, and is therefore subject to discipline pursuant to Article V, § 18(d)(1) of the Pennsylvania Constitution.
113. Canon 2B provides in part:
Judges should not allow their family, social or other relationships to influence their judicial conduct or judgment. They should not lend the prestige of their office to advance the private interests of others; nor should they convey or knowingly permit others to convey the impression that they are in a special position to influence the judge.
114. On September 30, 2011, former Judge Waters engaged in a conversation with Kuttab, who requested special consideration for Donegal at the Houdini hearing, scheduled before Judge Segal that same day.
115. On September 30, 2011, former Judge Waters initiated and engaged in ex parte communication with Judge Segal about the Houdini matter that was pending before her.
116. During his September 30, 2011 ex parte communication with Judge Segal, former Judge Waters requested special consideration for Donegal and Kuttab, with whom he shared a social, political or other relationship.
117. By his September 30, 2011 ex parte request for special consideration for Donegal and Kuttab, former Judge Waters allowed his family, social, political or other relationships to influence his judicial conduct or judgment.
118. By his September 30, 2011 ex parte request for special consideration, for Donegal and Kuttab, former Judge Waters did lend the prestige of his office to advance the private interests of others, Donegal and Kuttab.
119. On November 16, 2011, former Judge Waters engaged in a conversation with Kuttab, who requested special consideration for Donegal at the Houdini trial scheduled before Judge O'Neill that same day.
120. On November 16, 2011, former Judge Waters initiated and engaged in ex parte communication with Judge O'Neill about the Houdini matter that was pending before him.
121. During his November 16, 2011 ex parte communication with Judge O'Neill, former Judge Waters requested special consideration for Donegal and Kuttab, an individual with whom he shared a friendship or political relationship.
122. By his November 16, 2011 ex parte request for special consideration for Donegal and Kuttab, former Judge Waters allowed his family, social, political or other relationships to influence his judicial conduct or judgment.
123. By his November 16, 2011 ex parte request for special consideration for Donegal and Kuttab, former Judge Waters did lend the prestige of his office to advance the private interests of others, Donegal and Kuttab.
124. On June 29, 2012, former Judge Waters engaged in ex parte telephone and in person communications with Judge Segal about the Rexach petition for reconsideration, a matter pending before her.
125. During the June 29, 2012 ex parte communication with Judge Segal, former Judge Waters requested special consideration for Rexach with whom he had a family, social, political or other relationship.
126. By his June 29, 2012 ex parte request for special consideration for Rexach, former Judge Waters allowed his family, social, political or other relationships to influence his judicial conduct or judgment.
127. By his June 29, 2012 ex parte request for special consideration for Rexach, former Judge Waters did lend the prestige of his office to advance the private interests of another, Rexach.
128. On January 5, 2012, former Judge Waters conveyed to CW #1 that he was in a special position to influence the outcome of cases in the Municipal Court.
129. On January 5, 2012, former Judge Waters pledged to help CW # 1, and others known to CW #1, with future legal matters in the Municipal Court.
130. On May 7, 2012, former Judge Waters engaged in a conversation with CW #1 and UC #1, who requested special consideration for Khoury, and agreed to arrange for preferential treatment in the Khoury criminal case.
131. On July 23, 2012, former Judge Waters engaged in ex parte communication with Judge Segal about the Khoury Preliminary Hearing, a matter pending before her.
132. During the July 23, 2012 ex parte communication with Judge Segal, former Judge Waters requested special consideration for Khoury, based on his social, political or other relationship with CW #1 and UC #1.
133. By his July 23, 2012 ex parte request for special consideration for Khoury, former Judge Waters allowed his social, political or other relationship with CW #1 and UC #1 to influence his judicial conduct or judgment.
134. By his July 23, 2012 ex parte request for special consideration for Khoury, former Judge Waters did lend the prestige of his office to advance the private interests of others, including Khoury, CW #1 and UC #1.
135. On September 30, 2011, Judge Segal ruled in favor of Donegal and Kuttab, for whom former Judge Waters requested special consideration.
136. On November 16, 2011, Judge O'Neill ruled in favor of Donegal and Kuttab, for whom Judge Waters requested special consideration.
137. On June 29, 2012, Judge Segal ruled in favor of Rexach, the litigant for whom former Judge Waters requested special consideration.
138. On July 24, 2012, Judge Segal ruled in favor of Khoury, the litigant for whom former Judge Waters requested special consideration.
139. As a result of the favorable rulings by Judges Segal and O'Neill, former Judge Waters conveyed the impression to others, including the litigants for whom he requested special consideration in the Houdini, Rexach and Khoury matters, and CW #1 and UC #1 in the Khoury case, that he was in a special position to influence the judicial decision making of Judges Segal and O'Neill.
140. As a result of all of the conduct set forth above, former Judge Waters violated Canon 2B of the Old Code of Judicial Conduct.
COUNT 3
141. By virtue of some or all of the facts set forth in Parts B, former Judge Waters violated Canon 3A(4) of the Old Code of Judicial Conduct, effective through June 30, 2014, and is therefore subject to discipline pursuant to Article V, § 18(d)(1) of the Pennsylvania Constitution.
142. Canon 3A(4) proscribes ex parte communication and provides in part:
Judges . . . except as authorized by law, must not consider ex parte communications concerning a pending proceeding.
143. On September 30, 2011, former Judge Waters initiated and engaged in ex parte communication with Judge Segal about the Houdini hearing, a proceeding pending before Judge Segal that same day.
144. On November 16, 2011, former Judge Waters initiated and engaged in ex parte communication with Judge O'Neill about the Houdini trial, a proceeding pending before Judge O'Neill that same day.
145. On June 29, 2012, former Judge Waters initiated and engaged in ex parte communication with Judge Segal, by telephone and in person, about the Rexach case, a proceeding pending before Judge Segal that same day.
146. On July 23, 2012, former Judge Waters engaged in ex parte communication with Judge Segal regarding the Khoury case, a proceeding pending before Judge Segal the following day.
147. Former Judge Waters was not authorized by law to engage in ex parte communications with Judge Segal regarding the Houdini, Rexach and Khoury matters.
148. Former Judge Waters was not authorized by law to engage in ex parte communications with Judge O'Neill regarding the Houdini matter.
149. As a result of all of the conduct set forth above, former Judge Waters violated Canon 3A(4) of the Old Code of Judicial Conduct.
COUNT 4
150. By virtue of some or all of the facts set forth in Part C, former Judge Waters violated Canon 7B(1)(c) of the Old Code of Judicial Conduct, effective through June 30, 2014, and is therefore subject to discipline pursuant to Article V, § 18(d)(1) of the Pennsylvania Constitution.
151. Canon 7B(1)(c) provides in pertinent part:
(1) Candidates, including an incumbent judge, for a judicial office . . .
(c) should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; make statements that commit the candidate with respect to cases, controversies or issues that are likely to come before the court; . . . .
152. On January 5, 2010, former Judge Waters was a newly elected incumbent judge.
153. On January 5, 2010, after accepting a $1,000 cash donation from CW #1 for the purpose of paying off his 2009 campaign debt, former Judge Waters offered to assist CW #1 or "any of your people" with problems with code enforcement complaints or "anything you need" in the Municipal Court.
154. By his statement set forth above, former Judge Waters made a pledge or promise to accept requests for special consideration and to provide preferential treatment to CW #1 and "any of your people" in Municipal Court proceedings during his term as a judge.
155. By his statement set forth above, former Judge Waters made a statement of commitment regarding cases or issues that were likely to come before the Municipal Court.
156. Former Judge Waters' pledge or promise to provide favorable treatment to CW #1 and her/his people demonstrated a bias and prejudice in favor of those individuals.
157. By all of his conduct set forth above, former Judge Waters violated Canon 7B(c)(1) of the Old Code of Judicial Conduct.
COUNT 5
158. By virtue of some or all of the facts set forth in Part C, former Judge Waters violated Canon 7B(2) of the Old Code of Judicial Conduct, effective through June 30, 2014 and is therefore subject to discipline pursuant to Article V, § 18(d)(1) of the Pennsylvania Constitution.
159. Canon 7 B(2) provides in pertinent part:
(2) Candidates, including an incumbent judge, for a judicial office that is filled by public election between competing candidates should not themselves solicit or accept campaign funds . . . .
160. On January 5, 2010, former Judge Waters was a newly elected incumbent judge of the Municipal Court of Philadelphia.
161. On January 5, 2010, former Judge Waters accepted a $1,000 cash donation from CW # 1 for the purpose of paying off his 2009 campaign debt.
162. By his conduct of personally accepting the $1,000 cash contribution to pay off his 2009 judicial campaign debt, former Judge Waters violated Canon 7B(2).
163. Canon 7B(2) also provides in part:
Campaign committees may solicit funds for their campaigns . . . and all fundraising activities in connection with such judicial campaign shall terminate no later than the last calendar day of the year in which the judicial election is held.
164. The campaign committee to elect candidate Waters was permitted to accept contributions to his 2009 judicial campaign for the purpose of paying off campaign debt through December 31, 2009.
165. After December 31, 2009, the committee to elect candidate Waters was prohibited from all fundraising activities in connection with candidate Waters' 2009 judicial campaign.
166. On January 5, 2010, five days after the final day for his campaign committee to accept funds for his 2009 judicial campaign, former Judge Waters personally accepted a $1,000 cash donation from CW #1 to pay off his 2009 campaign debt.
167. By his conduct of accepting the $1,000 cash donation on January 5, 2010, former Judge Waters violated Canon 7B(2).
168. By all of his conduct set forth above, former Judge Waters violated Canon 7B(2) of the Old Code of Judicial Conduct.
COUNT 6
169. By virtue of some or all of the facts set forth in Part A, B & C, Judge Segal violated Article V, § 17(b) of the Constitution of the Commonwealth of Pennsylvania, and is therefore subject to discipline pursuant to Article V, § 18(d)(1) of the Pennsylvania Constitution.
170. The first clause of Article V, § 17(b) provides:
Justices and judges shall not engage in any activity prohibited by law . . . .
171. By virtue of his conviction for two felony offenses as set forth above, former Judge Waters engaged in activity prohibited by law.
172. Under the Pennsylvania Election Code, cash campaign donations from an individual contributor may not exceed $100. 25 P.S. § 3254(c).
173. On January 5, 2010, former Judge Waters personally accepted a $1,000 cash campaign donation from CW #1, an individual contributor, to pay off his 2009 campaign debt.
174. The $1,000 cash campaign donation was an amount worth 10 times the $100 limit for a cash donation from an individual cash contributor.
175. By his acceptance of the $1,000 cash campaign donation from CW #1, former Judge Waters violated the Pennsylvania Election Code.
176. By virtue of his violation of the Pennsylvania Election Code, former Judge Waters engaged in activity prohibited by law.
177. Under the Pennsylvania Campaign Finance Law, each judicial candidate and judicial campaign committee is required to submit Campaign Finance Reports and disclose the receipt of contributions to the judicial campaign. 25 P.S. §4246.
178. Former Judge Waters failed to disclose the $1,000 cash contribution to his judicial campaign fund that he received from CW #1 on his Campaign Finance Reports.
179. By his failure to disclose the $1,000 cash contribution on his Campaign Finance Reports, former Judge Waters violated the Pennsylvania Campaign Finance Law.
180. By virtue of his violation of the Pennsylvania Campaign Finance Law, former Judge Waters engaged in activity prohibited by law.
181. The second clause of Article V, § 17(b) provides:
Justices and judges . . . shall not violate any canon of legal or judicial ethics prescribed by the Supreme Court.
182. A violation of the Code of Judicial Conduct is an automatic derivative violation of Article V, § 17(b).
183. Former Judge Waters violated Canon 2A, 2B, 3A(4), 7B(1)(c) and 7B(2) of the Old Code of Judicial Conduct, as prescribed by the Pennsylvania Supreme Court, and thereby violated Article V, s 17(b).
184. By all of the conduct set forth above, former Judge Waters violated Article V, § 17(b).
COUNT 7
185. By virtue of some or all of the facts set forth in Parts A, former Judge Waters violated the Felony Conviction Clause of Article V, §18(d)(1) of the Constitution of the Commonwealth of Pennsylvania and is therefore subject to discipline.
186. Article V, §18(d)(1) provides in pertinent part:
A justice, judge or justice of the peace may be suspended, removed from office or otherwise disciplined for conviction of a felony; . . . .
187. On September 24, 2014, former Judge Waters entered a guilty plea to two federal felonies, mail fraud and honest services wire fraud.
188. On January 22, 2015, Judge Sanchez sentenced former Judge Waters to 24 months in federal prison, three years of Federal Supervised Release and a $5,500 fine.
189. As a result of the sentencing, former Judge Waters was convicted of two felonies.
190. By all of his conduct as set forth above, former Judge Waters violated the Felony Conviction Clause of Article V, § 18(d)(1).
COUNT 8
191. By virtue of some or all of the facts set forth in Parts B & C, former Judge Waters violated the Administration of Justice Clause of Article V, § 18(d)(1) of the Constitution of the Commonwealth of Pennsylvania and is therefore subject to discipline.
192. Article V, §18(d)(1) provides in pertinent part:
A justice, judge or justice of the peace may be suspended, removed from office or otherwise disciplined for . . . conduct which prejudices the proper administration of justice . . .
193. Former Judge Waters engaged in conduct which prejudiced the proper administration of justice when he entertained requests for special consideration from Kuttab regarding the Houdini and Khoury matters, and form CW #1 and UC #1 regarding the Khoury matter, and agreed to arrange for preferential treatment for the litigants per those requests.
194. Former Judge Waters engaged in conduct which prejudiced the proper administration of justice when he initiated and participated in ex parte communication with Judges Segal and O'Neill in the Houdini matter, and with Judge Segal in the Rexach and Khoury cases.
195. Former Judge Waters engaged in conduct which prejudiced the proper administration of justice when he requested special consideration for the litigants who appeared before Judges Segal and O'Neill in the Houdini matter, and before Judge Segal in the Rexach and Khoury cases.
196. On January 5, 2012, former Judge Waters engaged in conduct which prejudiced the proper administration when he offered to assist CW #1, and other individuals known to CW #1, with problems or issues in the Municipal Court.
197. Former Judge Waters engaged in conduct which prejudiced the proper administration of justice because the litigants, for whom he requested special consideration in the Houdini, Rexach and Khoury matters, did in fact receive favorable outcomes; whereas, the opposing parties and their attorneys in each of those cases knew nothing about the prohibited ex parte communications.
198. By all of his conduct as set forth above, former Judge Waters violated the Administration of Justice Clause of Article V, § 18(d)(1).
COUNT 9
199. By virtue of some or all of the facts set forth in Part A, B & C, former Judge Waters violated the Disrepute Clause of Article V, § 18(d)(1) of the Constitution of the Commonwealth of Pennsylvania and is therefore subject to discipline.
200. Article V, § 18(d)(1) provides in pertinent part:
A justice, judge or justice of the peace may be suspended, removed from office or otherwise disciplined for . . . conduct which . . . brings the judicial office into disrepute, whether or not the conduct occurred while acting in a judicial capacity.
201. By his convictions for two felony offenses as set forth above, former Judge Waters engaged in conduct which brought the judicial office into disrepute.
202. By his violation of the Pennsylvania Election Code and the Pennsylvania Campaign Finance Law, former Judge Waters brought the judicial office into disrepute.
203. Former Judge Waters engaged in conduct which brought the judicial office into disrepute when he entertained requests for special consideration from Kuttab regarding the Houdini and Khoury matters, and form CW #1 and UC #1 regarding the Khoury matter, and agreed to arrange for preferential treatment for the litigants per those requests.
204. Former Judge Waters engaged in conduct which brought the judicial office into disrepute when he initiated and participated in ex parte communication with Judges Segal and O'Neill regarding the Houdini case, and with Judge Segal regarding the Rexach and Khoury cases.
205. Former Judge Waters engaged in conduct which brought the judiciary into disrepute when he requested special consideration for litigants who appeared before Judges Segal and O'Neill in the Houdini matter, and Judge Segal in the Rexach and Khoury cases.
206. Former Judge Waters engaged in conduct which brought the judicial office into disrepute when he offered, quid pro quo, to assist CW #1, and other individuals known to CW #1, with problems or issues in the Municipal Court after he personally accepted a $1,000 cash campaign donation from CW #1.
207.
208. By all of the allegations of misconduct set forth above, former Judge Waters engaged in conduct so extreme as to bring disrepute upon the judicial office itself in violation of the Disrepute Clause of Article V, § 18(d)(1).
209. By all of the conduct set forth above, former Judge Waters violated the Disrepute Clause of Article V, § 18(d)(1).
WHEREFORE, Joseph C. Waters, Jr., former Municipal Court Judge, is subject to disciplinary action pursuant to the Constitution of Pennsylvania, Article V, § 18(d)(1).
Respectfully submitted,
ROBERT A. GRACI
Chief Counsel
DATE: March 11, 2015
By: /s/_________
ELIZABETH A. FLAHERTY
Deputy Counsel
Pa. Supreme Court ID No. 205575
Judicial Conduct Board
601 Commonwealth Avenue, Suite 3500
Harrisburg, PA 17106
(717) 234-7911
VERIFICATION
I, Elizabeth A. Flaherty, Deputy Counsel to the Judicial Conduct Board, verify that the Judicial Conduct Board found probable cause to file the formal charges contained in the Board Complaint. I understand that the statements herein are made subject to the penalties of 18 Pa. Cons. Stat. Ann. § 4904, relating to unsworn falsification to authorities.
Respectfully submitted,
ROBERT A. GRACI
Chief Counsel
By: /s/_________
ELIZABETH A. FLAHERTY
Deputy Counsel
Pa. Supreme Court ID No. 205575
Judicial Conduct Board
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 3500
P.O. Box 62525
Harrisburg, PA 17106
(717) 234-7911
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